Prior Deportee Claims ‘Extreme Hardship’ Due Process Right

by LANA SHADWICK
21 Apr 2018

A noncitizen who was deported after he was convicted of an aggravated felony is asking the U.S. Supreme Court to find that the Constitution gives him a due process right to be informed that he has the right to allege “extreme hardship” before being deported.

Emilio Estrada is challenging the validity of the original removal order saying that the “entry of the order was fundamentally unfair.”

Federal officials removed Estrada after he was charged and pleaded guilty to possession of a firearm by an unlawful user of a controlled substance – an aggravated felony under 8 U.S.C. section 1101(a)(43)(E)(ii). He illegally reentered the United States after he was deported, was discovered, and then charged with two counts of illegal reentry.

Estrada is now appealing the decision of the United States Court of Appeals for the Sixth Circuit and has filed a petition asking the U.S. Supreme Court to hear his case. He is asking the Court to find “that the entry of his removal order was fundamentally unfair because he was deprived of the opportunity to seek discretionary relief from removal.”

His lawyers urge our nation’s highest court to hear the case because there is a split in opinions from the Sixth (Cincinnati), Second (New York City), and Ninth Circuits (San Francisco). They add that the Second and Ninth Circuits “decide the vast majority of immigration appeals.” The Ninth Circuit has been criticized for its left-of-center rulings and is noted for striking down President Trump’s ban on travel from several terrorist-prone countries.

Lawyers for Estrada argue that Estrada was a lawful permanent resident (green-card holder), is married, and has four children who are U.S. citizens. They say he lived in Tennessee for 17 years and is the breadwinner for the family.

In his petition to the U.S. Supreme Court, Estrada complains that his lawyer rendered ineffective assistance of counsel because he did not raise the issue that “his removal would cause ‘extreme hardship’ to his family.”

When he illegally reentered the country and was charged for the same, Estrada sought to dismiss the indictment arguing that the deportation order violated the Due Process Clause “in light of his lawyer’s deficient performance and the immigration judge’s failure to inform him of the possibility of discretionary relief from removal.” The federal district court rejected his argument, and the Sixth Circuit affirmed the lower court’s ruling.

The petitioner urges that:

For Mr. Estrada and many noncitizens, this issue is critically important. Nearly one hundred thousand individuals face removal every year. For many, discretionary relief-which is granted not infrequently-is the only hope of remaining in this country.

The U.S. Department of Justice, Office of the Solicitor General, has until May 4th to file a response to Estrada’s petition for a writ of certiorari.

The U.S. Supreme Court has the discretion to decide whether or not to hear a case.

In his petition to the U.S. Supreme Court, Estrada complains that his lawyer rendered ineffective assistance of counsel because he did not raise the issue that “his removal would cause ‘extreme hardship’ to his family.”

Duh, probably because he knew it wasn't a justifiable argument in your defense.

In his petition to the U.S. Supreme Court, Estrada complains that his lawyer rendered ineffective assistance of counsel because he did not raise the issue that “his removal would cause ‘extreme hardship’ to his family.”

When a person goes to a foreign country, are they not responsible for learning the basic laws including the immigration laws? I could understand the courts taking the person's lack of experience into account, but everyone visiting another country should be aware of the requirements of being there. If he failed to educate himself on the basics of immigration law, how is that our fault? Ignorance of the law is no excuse.